On May 26, 2012, I published an article titled "A Family Is Created When a 'Child Happens' from Non-Relationship Sexual Intimacy. In that article, I explained that under common law, a child born during marriage is presumed to be the child of the marriage. Keep in mind, however, that a presumption does not equate to reality. One thing that is a certainty is that a woman who gives birth to a child is the mother, unless she happens to be a surrogate. Whether or not any given man is the father is far less certain because he did not give birth to the child. In fact, "one of the most popular explanations (as to why matrilineal descent determines Jewishness) asserts that paternal identity is less certain than maternal identity: Since we are more likely to know who the mother of a given child is, we are best off relying on her for definitive lineage." My point is not whether or not that is the actual explanation, but the fact that "paternal identity is less certain than maternal identity."
In any event, when a child is born outside of a marriage, there is no presumption as to the identity of the father. his causes enormous problems because women don't like their "virtue" called into question. Women know whether or not they had sexual relations with another man at the time of conception; however, the man cannot possibly know such things. Nevertheless, if the man requests a paternity test in order to give him the same degree of certainty that he is the father, all Hell tends to break loose. Such a request is offensive to the mother because her "virtue" has been called into question. In addition, mothers tend to jump to the conclusion that the man is making such a request because he is trying to get out of his parental responsibilities. How about the possibility that the man wants to take on his parental responsibilities, if he knows for certain that he is the father? When I say that all Hell breaks loose, I mean that there is a very high probability that the mother will interfere with the father's parental relationship with the child from that day forward. In point of fact, after reading my article, one of my former clients sent me the following email: "Thank you for the article... I felt very touched by it, since it matches my story to a T! And, yes, even after all this time and all the fighting, I'm still glad I stepped up to the plate."
Interestingly enough, the reaction to my article tended to differ significantly based upon the gender of the reader. Let me share with you some of the responses I received from female attorneys to describe the problem.
One such attorney commented as follows: "With all due respect, your post is offensive. It is sexist and near sighted. It takes two to make a child. If you are having sexual relations with a person, then a child may result. It is offensive, as a woman, to have a man that you had sex with, even as a one night stand, to suggest that he is not responsible. As a matter of biology, accountability and psychology, the situation is different for men vs. women when it comes to having children. A man can have sex multiple times a day with multiple women and impregnate them, and there is no immediate physical evidence to show he has done so. Because the women is pregnant does not mean he is the father. That is what this argument is about. His trump card is to request a paternity test. To put a woman through the ringer to make her prove he is the one is offensive. Of course, she is the only one who knows with whom and how often she has had sex. And if she says, you're the only one I have been within the past XX months, so it has to be your child. It is offensive for him to question that, even if it was a one night stand."
Another wrote: "It takes two to tango. You said that the woman got pregnant as if the man had nothing to do with it when this simply cannot be the case, ever. I realize that there are biological complications that can lead to uncertainty, such as time of conception relative to time of introduction of sperm to the cervix, uterus, and then fallopian tube. As someone also extremely educated in the reproductive process of conception, I understand that there must not be more than one possible 'father' for a certain amount of time prior to and after ovulation for the father's identity to be unquestionable, biologically speaking. Of course, if there is no insemination for at least one week before and one week after ovulation, then the woman should have no doubt regarding the identity of the father of the potential child. With some simple calendaring and counting, the answer is easy to find."
Yet another said, "What I am seeing here is a group of people 'siding' with the women and another 'siding' with the men, when all of them are about as immature and irresponsible as I can imagine. Can you say condom? And with that, I'm out. Have fun with this."
Comments from male attorneys, on the other hand, tended to be as follows:
"I, for one, come down on the side of Mark in this debate. In simplest terms, if one man is erroneously/wrongfully forced to (as compared to voluntarily) accept the duties of parenting for a child that in fact was not his, then it is equivalent to a wrongful conviction of a deal penalty crime. 'It is offensive, as a woman, to have a man that you had sex with, even as a one night stand, to suggest that he is not responsible.' 'Offensive?' Excuse me, but I find the idea of 18 - 22 years of indentured servitude in the form of child support for a child which may not be mine 'offensive.'"
"The woman got pregnant. She gave birth to the child. She knows with 100% certainty that she is the mother. How does the man know that he is the father with 100% certainty without a paternity test, especially if the child resulted from a one-night stand?"
The "game changer" is the home paternity test. With a home paternity test, the man never needs to ask the mother for a paternity test; rather, he can "figure" that out without ever letting the mother know. Thus, if he is the father, he doesn't have to question the mother's virtue and thereby prevents all Hell from breaking loose. While I don't typically encourage "sneaky" behavior, I just don't see a good alternative in this situation, unless the man wants to just take the mother's word on face value. However, keep in mind that "paternity fraud does occur and is a real issue. "One state that examined the problem [of 'paternity fraud' and] found as many as 30 percent of those paying child support were, indeed, not the biological fathers of the children being supported." Have women essentially backed men into a corner, such that the only way out is by "sneaking" a paternity test? Of course, the entire problem could be eliminated if paternity tests were routinely done whenever a child is born, at least outside of marriage.
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